‘New York Times’ Urges Supreme Court to Strike Down DOMA

In an editorial, the NYT looks at the possibility that SCOTUS will take up a DOMA case and urges the Court to strike down the discriminatory law:

SupremesIt is a strong bet that the justices will take the appeal when they return from their summer break. The Justice Department is right that firmly resolving the issue is of great importance to the country and to tens of thousands of gay people denied benefits like the right to file joint tax returns and to receive spousal Social Security payments. We hope the justices will review the cases and issue a strong ruling striking down this noxious law.

The Defense of Marriage Act also heaps particular inequities on married gay service members and their families. Under the law, same-sex spouses are denied benefits granted to other military spouses, including medical and dental insurance, treatment in military medical facilities, discounted housing and surviving spouse benefits. This policy is completely at odds with the military’s goal of building a culture of openness and equality following the demise of “don’t ask, don’t tell.”


  1. endo says

    What happens if the SCOTUS does strike down DOMA? I don’t actually know.

    It doesn’t mean gay marriage suddenly becomes legal at a national level, right? Would congress still need to pass legislation approving marriage?

  2. Icebloo says

    The Supreme Court will not support us – it’s too corrupt. It has always had a right wing slant to it- that’s why the US is in such a mess.

    We have the worst human rights (not just gay rights) in all of the industrialized countries because the Supreme Court system is broken.
    They are a bunch of right wingers who look after the interests of big business and the rich at the expense of the poor. The whole system needs replacing if the majority of American taxpayers are ever to be treated fairly.

  3. GeorgeM says

    Right marriage would not be legal in all 50 states. What it would do is allow the federal government to except Conn’s definition of marriage. It would have to hold marriages legal in CT the same as it does marriages in montana.

    In ct when you marry someone of the same sex you file a joint state tax return, you file single federal tax returns. The government doesn’t care that ct allows same sex marriage. Hopefully they will someday.

  4. Bob R says

    As a result of the ACA ruling there is now deep dissent and animosity among the conservative members of the Supreme Court. Roberts might try to win back some of his lost conservative “cred” by voting with an almost certain vote by Alito, Scalia, Thomas and Kennedy to keep DOMA in place. I expect nothing positive from this court.

  5. says

    @ ENDO :
    Perhaps it would allow or require States with or without same sex marriage to recognise foreign marriages which are valid in the country of performance of that marriage.
    at least this would allow foreign spouses to live with their partners legally without the risk of deportation.

  6. Chris says

    Kennedy is not likely to vote with the conservatives on this matter. He is the most libertarian member of the court. If and when the court strikes down DOMA, State law becomes the rule. This creates some serious legal problems because of an issue called “State of Choice” under the law. Which State’s law holds? The State in which the contract was signed or the State in which the citizen is domiciled? Practically, Federal law recognizes the State’s definition of marriage. Until DOMA, the Feds had rarely ventured into any definition of marriage, and only the court legalizing interracial marriage (or more correctly, nullifying State miscegenation laws).

    So the problem becomes “which State’s law do we respect? New York State, where one can get married as a same sex couple; or North Carolina, where it is constitutionally banned?”

    This question has been a problem of Federal law since the conception of our nation.

    The courts, if they don’t find an inherent right to marriage for same sex couples will thus push to Congress to make a decision on what will rule, the choice of State of Contract or the State of Domicile.

    It will be very difficult to choose State of Domicile because a marriage contract could be legal and valid in New York but then evaporate at the border, even if the marriage was 10 years old.

    If the Congress doesn’t act, then as the court cases move their way back to the Supreme Court dealing with legal issues relating to which State’s law is valid, the Court will be forced to decide.

    They could bypass all of that by declaring LGBT marriage is a right. Or they could avoid it all by upholding DOMA.

    But upholding DOMA is unlikely as it, from a conservative perspective, is the most vast power grab from the States to the Federal Government since the Roosevelt Administration.

    Complex. Timely. Interesting.

  7. says

    @ CHRIS :
    I thought “capacity” was governed by the law of the domicile; formalities governed by the law of the place of performance….lex situs, ie the contractual formalities.

    Once a marriage is valid by the law of the performing state then it must be recognised, unless it’s against public policy.
    Am I completely wrong ?

  8. MickleSt says

    Yep, the court is so tied in to whatever the New York Times says–not. But, OK, the Times wants their official position on record. Good on them, anyway.

  9. anon says

    The court hasn’t even accepted the case. Technically, DOMA has already been struck down, but the bizarre way that the courts work in the US makes that point somewhat moot. If they take up the appeal, it would be an appeal by the pro-DOMA litigants, not the anti-DOMA ones. This means that if they don’t take the case then the ruling striking down the law will stand. There are many potential outcomes, therefore.

  10. says

    @Endo: Correct. These cases deal with Section 3 of DOMA and whether denying legally married same-sex couples the federal benefits opposite couples receive is constitutional. Several courts have already decided it is not.

    The cases aren’t about a broad right to marry (deliberately) and a positive ruling still wouldn’t mean that a same-sex couple could get married in Kansas, or that the out-of-state marriages of same-sex couples would be recognized there (unless all of DOMA was thrown out). That’s why a 5 vote majority isn’t a nutty idea even given the Court’s composition.

    But if part of DOMA crumbles at the SC level it makes the case for getting rid of it altogether all the stronger. Each success takes us closer to the tipping point.

    Lawyers correct me if I’m wrong.

    @Peter: That’s why New England and Canada have streets running with blood. You might want to apply for Court Jester though, idiot.

  11. MiddleoftheRoader says

    Good comments by Chris & Ernie & others. Some points to keep in mind:

    1) Perhaps the ultimate insult imposed by DOMA is that a same-sex married Veteran who dies can be buried in a national cemetery (like Arlington National Cemetery), but because of DOMA his or her legal spouse would not qualify as a “spouse” to be buried alongside.

    2) Yes, Justice Kennedy is a libertarian in many respects, but too many people are assuming he will strike down DOMA on the basis of a “right to marriage”. That seems like way too broad a leap for him to make. Instead, both he and Chief Justice Roberts are more likely to conclude that the federal government cannot refuse to recognize marriages that were validly entered into in various states because the federal government has usually deferred to each state’s decision as eligibility standards for entering into a “marriage” (for example, cousins can marry in some states and not others, and the federal government recognizes marriages of cousins; some states allow common law marriages based on cohabitation and others do not, yet the federal government recognizes marriages that exist based on the common law of cohabitation). IF — and I mean IF — the Supreme Court strikes down DOMA, it’s going to be on this narrow ground of deference to state laws, and not based on recognition of same-sex marriage as a constitutional right.

    3) We also need to keep in mind that ex-Justice Sandra Day O’Connor, who concurred in striking down the sodomy law in Lawrence v. Texas, said the following about marriage:

    (QUOTING JUSTICE O’CONNOR): “That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations -the asserted state interest in this case other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.” Given Justice O’Connor’s comments about marriage, don’t expect Justice Kennedy or C.J. Roberts to express a viewpoint (right now) that is more liberal/libertarian than her viewpoint.

    4) Chris is correct that ultimately, but probably not in next year’s DOMA cases, the Supreme Court will face the question of what happens to married same-sex spouses when they move to a state that doesn’t recognize their marriage. The federal government may have to continue to recognize the same-sex marriage for federal law purposes based on the fact the marriage took place in a state where it is valid under state law; otherwise, it could be a violation of ‘due process’ or ‘equal protection’ if the federal government decided that a “married” couple automatically becomes “unmarried” and loses retirement, health and other federal benefits simply by moving across state lines and changing their domicile to a new state.

    5) On the other hand, the new state into which the same-sex married couple has moved may not be required to recognize that they are married for ALL state law purposes — for example, perhaps the Supreme Court might end up saying that the couple could be denied the right to file a joint tax return or get the benefit of state inheritance laws that apply to married couples. But there’s probably a limit to how far the Supreme Court would allow these states to go — for example, one of the more bizarre results could be that the children of a married same-sex couple in New York might be deemed as not having married parents if that couple moved to Pennsylvania. That bizarre result might be deemed by the Supreme Court to violate the couple’s due process and equal protection rights because the new state would automatically be terminating their joint parental relationship with the children, and it might similarly violate the children’s due process and equal protection rights by automatically taking away from them their rights as children of a married couple. It’s complicated. In fact, a recent court case decided that when a same-sex couple adopted children in a state that allows for same-sex dual-parent adoption, the new state into which they moved was NOT required to issue a new birth certificate that lists both of them as parents!

    4) There is a practical aspect to all of this as well, and it has a historical analogue. Many years ago Congress passed a law that said that 18 year olds could vote in federal and state elections. The Supreme Court said that Congress could not set the age for voting in state elections, only in federal elections. The states began to freak out because that meant that there would have to be 2 types of ballots in most elections: a federal ballot that allowed anyone over 18 to vote for President, Senator and Congressperson, and an entirely different ballot that allowed only those over 21 (or 20) to vote for federal candidates and for state candidates. Given this mess, the states actually approved an amendment to the US Constitution that allows anyone over 18 to vote in federal and state elections. Although I doubt that a constitutional amendment would be adopted to allow same-sex couples to be considered married in all states to which they move, it is possible that Congress could pass a law that gave same-sex couples that right — sort of a “reverse DOMA” — in order to avoid the messy and bizarre results that would occur if some states refused to recognize marriages from other states. All of these issues — like what happens to children and what happens to joint property held as tenants-by-the-entirety — are more than just about money, and they have no practical solutions if the marriage is not recognized. This will drive the states and the federal government crazy, and it will lead to some action.

    The next 10 years will be a lawyer’s dream as these issues get raised and decided. And ultimately, they will come out the ‘right way’. It’s just a question of how long it takes and who suffers in the interim.

  12. Artie_in_Lauderdale says

    @ Peter,

    No wave of violence in New England or Canada has been noted. There is the possibility of violence from those radical conservationists who consider lions an endangered species. They insist that there are not enough lions and too many Christians, and they simply will not be disabused of the notion.

  13. says

    “Obama failed to do anything to repeal it. Nuff said.”

    Ever heard of the DOJ? Actually, Obama is doing quite a lot to repeal it, while the Republicans are both defending it in court and not signing on to the Respect for Marriage Act. Any troll who plays the blame the Democrats game either has to point out that the Clinton-era Republicans wanted an amendment to permanently enshrine discrimination into the constitution (and many of them, including Mittens, still do) or look like an ignorant fool. Oh, it’s Jason (aka Bruce/Brian/etc), Nuff said.

    And thanks, @Middle, for elaborating on some points I was thinking of after posting (if I’d tried to lay them out my non-legal brain may have exploded)–in essence, it’s complicated will sum it up if we have a crazy patchwork of state marriage laws across the US. The obvious solution, of course, is full federal marriage equality, but the dinosaurs will be fighting against that simple remedy till the bitter end.

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